CEDH · CASELAW;DECISIONS;ADMISSIBILITY;ENG — 9 mars 2010

.s800EAC49 { font-size:12pt } .s523616E0 { margin-top:0pt; margin-bottom:12pt; text-align:center; font-size:14pt } .sBB9EE52A { font-family:Arial } .s8229ABDD { margin-top:0pt; margin-bottom:12pt; text-align:center } .s10950C61 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .sB9D5CABB { width:28.35pt; display:inline-block } .sA36B60A1 { font-family:Arial; font-style:italic } .s967D43C6 { margin-top:36pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s7EE1C8F0 { margin-top:18pt; margin-left:29.2pt; margin-bottom:12pt; text-indent:-17.6pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s29100277 { font-family:Arial; font-weight:bold } .sC702907E { margin-top:12pt; margin-left:36.6pt; margin-bottom:6pt; text-indent:-15.05pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s88A92475 { margin-top:12pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .sDD165512 { margin-top:12pt; margin-left:14.2pt; margin-bottom:0pt; text-align:justify } .s7CB9076 { margin-top:36pt; margin-bottom:0pt; page-break-inside:avoid; page-break-after:avoid } .sF8DCB537 { width:16.53pt; display:inline-block } .s25347E17 { width:182.43pt; display:inline-block } .s7602FED2 { width:18.21pt; display:inline-block } .sC1AC44A4 { width:228.11pt; display:inline-block } FOURTH SECTION DECISION Application no. 44901/08 by Rafał KOSTRZEWA against Poland The European Court of Human Rights (Fourth Section), sitting on   9   March 2010 as a Chamber composed of:   Nicolas Bratza, President,   Lech Garlicki,   Giovanni Bonello,   Ljiljana Mijović,   Päivi Hirvelä,   Ledi Bianku,   Nebojša Vučinić, judges, and Lawrence Early, Section Registrar, Having regard to the above application lodged on 31 August 2008, Having regard to the formal declarations accepting a friendly settlement of the case, Having deliberated, decides as follows: THE FACTS The applicant, Mr Rafał Kostrzewa, is a Polish national who was born in 1980 and is currently serving a prison sentence in Sztum Prison. The Polish Government (“the Government”) were represented by their Agent, Mr.   J.   Wołąsiewicz of the Ministry of Foreign Affairs. A.     The circumstances of the case 1.     Conditions of the applicant's detention On an unspecified date the applicant was convicted by a criminal court and sentenced to a term of imprisonment. He was detained in Iława Prison on five different occasions, namely from 18   July   2000 until 15 November 2002, from 14 August 2003 until 8   March   2004, from 23 May until 1 September 2005, from 21 March until 24 or 28 April 2006 and from 29 April until 15 May 2007. It appears that from 15 November 2002 until 14 August 2003 and from 8   March 2004 until 23 May 2005 he was at liberty and from 1   September   2005 until 21 March 2006 he was detained in a different establishment. During his first incarceration in Iława Prison, the applicant was assigned to the following cells: from 18 until 27 July 2000 – cell no. 11 in ward V, measuring 17 square metres and shared by five prisoners, including the applicant; from 27 until 31 July 2000 – cell no. 3 in ward VII, measuring slightly over 17 square meters and shared by four persons; from 31 July until 21 September 2000 – cell no. 18 in ward VI, measuring almost 17   square metres and shared by six prisoners; from 21 September until 19   October 2000 – cell no. 17 in ward VI, measuring 17 square metres and shared by five prisoners; from 19 October until 6 December 2000 – cell   no.   7 in ward VI, measuring 17 square metres and shared by six people; from 6   December 2000 until 22 February 2001 – cell. No. 18 in ward VI, measuring almost 17 square metres and shared by seven prisoners; from 22   February until 10 May 2001 – cell no. 10 in ward VI, measuring 5.24   square metres and shared by two people; from 10 May until 27   June   2001 – cell no. 9, measuring less than 4.65 square metres and shared by two persons; from 27   June until 30 November 2001 - cell no. 18 in ward VI, measuring almost 17 square metres and shared by ten prisoners; and from 30 November 2001 until 15 November 2002 – cell no. 10, measuring 5.20   square metres and shared by one to three people. During his second incarceration in Iława Prison, the applicant was held in the following cells: from 14 until 18 August 2003 – a cell of an unspecified number in ward Va, measuring 13 square metres and shared by five persons; from 18 August until 4 September 2003 – a single cell of an unspecified number, measuring almost 5 square metres; from 4 September until 19 December 2003 – cell no. 39, measuring 7 square metres and shared by four to five prisoners; and from 19 December 2003 until 8   March   2004 cell no. 43, measuring 16 square metres and shared by six to seven people. During his third incarceration in Iława Prison, the applicant was assigned to the following cells: from 23 May until 8 June 2005 – cell no. 31 in ward   V, measuring 16 square metres and shared by seven prisoners; and from 8   June until 1 September 2005 – cell no. 29, measuring almost 17   square metres and share by seven to eight people. During his fourth incarceration in Iława Prison, the applicant was held in the following cells: from 21 March until 28 April 2006 – cell no. 29, measuring almost 17 square metres and shared by six to seven people. Lastly, during his fifth period of imprisonment in Iława, the applicant was assigned to the following cells: from 29 April until 15 May 2007 – cell   no. 29, measuring almost 17 square metres and shared by five persons. The applicant submitted that despite the fact that he had informed the authorities of Iława Prison that he was a non-smoker, his fellow inmates had not been banned from smoking inside the cells. Moreover, he maintained that the toilet annex had not been separated sufficiently to offer any privacy. The documents submitted by the applicant reveal that by letters of 15   February, 20 April and 20 November 2006 and of 31 March and 22   August 2007, the Governor of Iława Prison ( Dyrektor Zakładu Karnego ) informed the Elbląg Regional Court's penitentiary judge of the fact that the population rate in his prison had exceeded the maximum allowed capacity of that establishment by 22, 25, 30, 26 and 28%, respectively. 2.     The applicant's civil action in tort On 12 March 2007 the applicant brought a civil action against the Iława Prison and the State Treasury. He claimed PLN 150,000 as compensation for the alleged breach of his personal rights, namely his dignity and health, on account of the fact that for forty months (from 18 July 2000 until 15   November 2002, from 14 August 2003 until 8 March 2004, from 23   May   until 1 September 2005, from 21 March until 24 April 2006 and from 29   April until 15 May 2007) he had been held in overcrowded cells, which offered no privacy, together with smokers. On 1 August 2007 the applicant reduced the amount of the compensation sought to PLN 80,000. On 14 November 2007 the Elbląg Regional Court ( Sąd Okręgowy ) awarded the applicant PLN 500 on account of the non-pecuniary damage suffered as a result of his having been exposed to cigarette smoke during his detention in Iława Prison in the period from 23 May 2005 until 15   May   2007. The court dismissed the remainder of the claim. In so far as it related to the applicant's detention between 18 July 2000 and 8 March 2004 the claim was dismissed because of negative prescription. In so far as it related to the alleged problems of overcrowding and lack of privacy, the court examined the applicant's claim under Article 24 in conjunction with Article 448 of the Civil Code, interpreting these provisions in the light of the 2007 Supreme Court's judgment. The court considered, however, that the overcrowding in the applicant's case had not been so excessive in its duration and scale as to infringe the applicant's dignity. It was also held that because the overcrowding had occurred only temporarily it had not constituted an unlawful action on the part of the authorities within the meaning of the applicable provisions. Moreover, the court found that the sanitary annexes had been sufficiently separated in each of the applicant's cells and that the limited privacy was a natural consequence of the deprivation of liberty and sharing a living space with other persons. On 16 April 2008 the Gdańsk Court of Appeal ( Sąd Apelacyjny ) changed the first-instance judgment in that the applicant's claim was dismissed in its entirety. On 30 June 2008 the Gdańsk Court of Appeal exempted the applicant from court fees and appointed a legal-aid lawyer to represent him in the cassation appeal proceedings. On 8 July 2008 the Gdańsk Regional Bar Association ( Okręgowa Rada Adwokacka ) assigned a lawyer to take the applicant's case. By letter of 20 July 2008 the lawyer informed the Gdańsk Court of Appeal and the applicant himself that there were no grounds to lodge a cassation appeal in the case. The lawyer's refusal was accompanied by lengthy reasoning. COMPLAINT The applicant complained under Article 3 of the Convention of the inadequate conditions of his detention in Iława Prison. PROCEDURE On 18 January and 1 February 2010 the Court received friendly settlement declarations signed by the parties under which the applicant agreed to waive any further claims against Poland in respect of the facts giving rise to this application against an undertaking by the Government to pay him 8, 400 Polish zlotys to cover any non-pecuniary damage as well as costs and expenses, which will be free of any taxes that may be applicable It will be payable within three months from the date of notification of the decision taken by the Court pursuant to Article 37 § 1 of the European Convention on Human Rights. In the event of failure to pay this sum within the said three-month period, the Government undertook to pay simple interest on it, from expiry of that period until settlement, at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points. The payment will constitute the final resolution of the case. THE LAW The Court takes note of the friendly settlement reached between the parties. It is satisfied that the settlement is based on respect for human rights as defined in the Convention and its Protocols and finds no public policy reasons to justify a continued examination of the application (Article 37 § 1 in fine of the Convention). In view of the above, it is appropriate to strike the case out of the list. For these reasons, the Court unanimously Decides to strike the application out of its list of cases.   Lawrence Early   Nicolas Bratza   Registrar   President